OIP GUIDANCE

NEW LIMITATIONS ON TOLLING THE FOIA'S RESPONSE TIME

Section 6 of the OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524, imposes several new requirements on agencies that impact the time limits for complying with FOIA requests and impose consequences on agencies when those time limits are not met. This section will take effect on December 31, 2008, and will apply to FOIA requests "filed on or after that effective date." § 6(b)(2). Accordingly, beginning with requests received on December 31, 2008, agency FOIA offices will: 1) be required to forward any misdirected FOIA requests received by them to the proper FOIA office within the agency, within ten working days; 2), be limited in the number of times they can "toll" the twenty-working day response period; and 3) be precluded from assessing search (or if applicable, duplication) fees if they are unable to comply with the FOIA's response times, unless the exceptions to this limitation are met.

OIP is providing guidance on each of these three provisions in separate FOIA Post articles. This article addresses the second requirement of Section 6 which imposes limits on the number of times an agency can toll the FOIA's twenty working-day response time.

New Limitations on Tolling

Section 6(a)(1) of the OPEN Government Act imposes limits on an agency's ability to "toll" or stop the twenty working-day time period to respond to FOIA requests. Specifically, beginning with requests made on December 31, 2008, agencies will be precluded from tolling the time period to respond to requests except in two circumstances. First, an agency will be permitted to "make one request to the requester for information and toll the 20-day period while it is awaiting such information that it has reasonably requested from the requester." § 6(a)(1)(I) (emphasis added). Second, an agency may also toll the time period "if necessary to clarify with the requester issues regarding fee assessment." § 6(a)(1)(II). For this second circumstance, where tolling is necessary in order to clarify fee issues, there is no numerical limit given for the number of times an agency may toll the response period, provided it is "necessary" to do so. In both situations, the FOIA now provides that "the agency's receipt of the requester's response to the agency's request for information or clarification ends the tolling period." Id.

Request Must be Properly Made and Clock Started Before Need For Tolling Can Arise

As a threshold matter, "tolling" refers to the situation where an agency stops the twenty working-day response time clock, once it has begun to run. Section 6(a) now imposes both criteria for tolling and limitations on the number of times it may occur. These restrictions only apply, however, once the twenty working-day response time has begun to run. Thus, once the proper FOIA office is in receipt of a FOIA request, if it determines that the request is not reasonably described or otherwise fails to meet a procedural requirement for making a request, the FOIA office should work with the requester to clarify those issues. Until those issues are resolved, the request is not considered to be "received" and the twenty working-day response time has not yet begun to run. Upon receipt of the necessary information from the requester that satisfies the agency's requirements for a proper request, the twenty working-day response period commences. It is only after this point that the issue of tolling can even arise and it is only then that the limitations on tolling apply.

The requirements for making a proper FOIA request are relatively simple. The FOIA provides that requesters must "reasonably describe" the records they are seeking, and that requests must be "made in accordance with published rules stating the time, place, fees (if any), and procedures to be followed." 5 U.S.C. § 552(a)(3)(A) (2006), amended by OPEN Government Act of 2007, Pub. L. No. 110-175, 121 Stat. 2524. If a request reasonably describes the records sought, is made in compliance with the agency's regulations, and is directed to the proper FOIA office within the agency, the twenty working-day response period will begin to run upon its receipt. If the request is otherwise properly made, but is misdirected within the agency, the receiving FOIA office, provided it is designated by the agency's regulations to receive requests, will route the request to the proper FOIA office within the agency, and the twenty working-day response period will begin to run not later than ten days after receipt by the receiving FOIA office. SeeFOIA Post, "New Requirement to Route Misdirected FOIA Requests" (posted 11/18/2008).

Requirements for Tolling the Response Time

Once a properly made FOIA request is received and the twenty working-day time period has begun, the need for tolling can arise. Starting with requests received on December 31, 2008, the reasons for tolling a request must be divided between those connected to fee assessments and those that are not connected to fees.

First, if during the course of processing the request the agency determines that it needs additional information from the requester that is not connected to assessing fees, it will only be able to toll the response time period one time to obtain that non-fee related information. The standard to be used by the agency for this non-fee related tolling scenario is that the information sought from the requester be "reasonably requested." For instance, during the course of conducting a search an agency may determine it needs additional information from the requester in order to determine if certain records are responsive to the request. The agency may contact the requester to obtain the necessary information and toll the twenty working-day time limit while it is waiting for the requester's response. Because there will only be one opportunity to toll the clock in order to obtain such information, agencies should take care to ask all their informational questions at one time.

In addition to providing agencies with this one catch-all opportunity to toll the response period while reasonably requesting non-fee related information from a requester, Section 6(a) also provides for tolling "if [it is] necessary to clarify with the requester issues regarding fee assessment." § 6(a)(1)(II). Although there is no numerical limit on the number of times tolling can occur for purposes of clarifying fee issues, any such tolling must be "necessary." This provision recognizes that issues involving fees can arise sequentially over the course of processing a request and cannot always be resolved all at one given point in time. As a result, so long as it is "necessary" to clarify an issue regarding fees with a requester, it is permissible to toll or to stop the response period for that purpose, even if it happens several times during the processing of the request.

Agencies should be mindful that for both types of tolling there is a statutory standard to apply. When tolling to seek non-fee related information from a requester, it must be reasonable for the agency to request such information. When tolling in order to clarify fee issues, it must be necessary for the agency to do so. Moreover, in both situations where tolling occurs, the time period to respond to the request resumes - i.e., the tolling ends - once the agency receives a response from the requester.

Applying the Tolling Provisions

Question: What if an agency has already used its one opportunity to toll in order to obtain non-fee related information from a requester, but discovers later on in the processing of the request that it would be useful to ask the requester another non-fee related question. Is the agency prohibited from communicating with the requester a second time?

Answer: No. Agencies should always feel free to contact requesters if doing so will facilitate the processing of their requests. Under Section 6(a), however, if an agency has already tolled the response period once to obtain non-fee related information from a requester, it will not be able to toll it a second time on that basis. That means the clock will continue to run while the agency goes back to the requester a second time to obtain non-fee related information.

Question: What if a requester has agreed, for example, to pay $100 for the processing of her request, but during the course of searching for responsive records, the agency determines that it will take additional time to complete the search which will result in additional search fees. Can it toll the response time to get a new fee commitment from the requester?

Answer: Yes, the agency may toll the response time period and go back to the requester to see if she will agree to pay those additional search fees. If the requester agrees to pay an additional $100 the agency will then continue searching up until the search time afforded by that $100 is expended.

Question: If, at that point in time there is still additional searching left to do, can the agency toll the response period again?

Answer: Yes. The agency can toll a request multiple times if necessary in order to clarify with the requester issues regarding fees.

Conclusion

Beginning with requests received on December 31, 2008, there are two circumstances where tolling of the FOIA's twenty working-day response period will be permitted. Agencies will be allowed one catch-all opportunity to seek information from a requester provided it is "reasonable" to do so. Agencies will also be allowed to toll, without numerical limit, the response period if it is necessary to clarify issues regarding fees.